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PLAYGROUND XYZ Terms of Use

These PLAYGROUND XYZ Terms of Use (the Terms) form a legally binding contract between you (you or the User) and PLAYGROUND XYZ Australia Pty Ltd (ABN 42 607 532 365) (PLAYGROUND), collectively the parties.

By clicking "I accept the PLAYGROUND XYZ Terms of Use" at the time of your order or by continuing to use or access any products or services made available by PLAYGROUND, you agree to be bound by these Terms. If you do not agree with any of these Terms, you may not use any products or services offered by PLAYGROUND.

If you are entering into these Terms on behalf of an entity or organisation, you represent and warrant that you have the full authority as at the time of entering into these Terms to bind that entity or organisation to the terms of these Terms. You will provide evidence of such authority on request to PLAYGROUND.

It is agreed as follows:

Provision of Services

PLAYGROUND will provide the Services to the User during the Term in accordance with these Terms.

PLAYGROUND will use reasonable endeavours to ensure that the Advertising Formats are compatible with Certified Websites.

Term and Contract Administration

These Terms commence on the date that the User clicks "I accept the PLAYGROUND XYZ Terms of Use" (the Commencement Date) and will, subject to clause 2(b), continue for 12 months (the Initial Term), unless terminated in accordance with clause 11.

These Terms will be automatically extended for successive 12 month periods (each period being a Renewal Term) unless:

either party provides the other party with at least 90 days' written notice prior to the commencement of the relevant Renewal Term of its intention to cancel such automatic renewal; or

these Terms are terminated in accordance with clause 11.

These Terms incorporate, and the parties are required to comply with, the terms of the applicable Order Form(s) (including any special notes or instructions stated in the Order Form) and any other requirements agreed between the parties during the Term.

In the event of any inconsistency between the provisions of the Terms, the item higher in order of precedence will prevail:

the special notes or instructions (if any) set out in the applicable Order Form;

the remaining provisions of the applicable Order Form;

clauses 1 to 22 of these Terms.

Login credentials

PLAYGROUND shall provide the User, and each User Account Holder, with unique login details, in order for User and each User Account Holder to access the PLAYGROUND Materials during the Term. User must ensure that it and each User Account Holder keeps their login details secure and does not share them with any other person. PLAYGROUND will not be liable for any Loss from a User's, or User Account Holder's, failure to maintain the security of their login credentials. User is responsible for any and all actions taken using a User's (or User Account Holder's) login credentials. User will immediately notify PLAYGROUND of any unauthorized use of which User becomes aware.

4 Use of PLAYGROUND Material

User must not, and must procure that each User Account Holder does not:

(a) access or otherwise use the PLAYGROUND Materials except in accordance with these Terms and PLAYGROUND's directions;

(b) provide or otherwise make available to any person all or any part of the PLAYGROUND Materials or information regarding the performance of the PLAYGROUND Materials, except as expressly authorised by these Terms or with PLAYGROUND's prior consent;

(c) use or access the PLAYGROUND Materials in any way that infringes PLAYGROUND's, or a third party's, Intellectual Property Rights;

(d) use the Advertising Formats on any website that is not a Certified Website;

(f) vary, alter, modify or interfere with, or merge all or any part of the PLAYGROUND Materials (including object or source code) with other programs without PLAYGROUND's prior written consent;

(g) use the PLAYGROUND Materials in a way that could damage, disable, overburden, impair or compromise PLAYGROUND's systems or security or interfere with other users;

(h) reverse disassemble, decompile or reverse engineer, or directly or indirectly allow or cause a third party to disassemble, decompile or reverse engineer the whole or any part of the PLAYGROUND Materials, or any locking or security device used or supplied with the PLAYGROUND Materials, or otherwise attempt or allow any other party to attempt to obtain the algorithms by which the PLAYGROUND Materials perform their functions; or

permit a third party to export or otherwise transfer the PLAYGROUND Materials outside Australia (or any other territory, as agreed between the parties in writing).

Faults

Each party must promptly notify the other if they become aware of any Fault which has or may have a material adverse effect on the PLAYGROUND Materials or on the ability of PLAYGROUND to provide the Services.

Both parties will work together in good faith and will use reasonable endeavours to ensure that any Fault is rectified within a reasonable period.

Intellectual Property

The parties acknowledge and agree that all rights, title and interest (including all Intellectual Property Rights) in and to the:

PLAYGROUND Materials (including any improvements thereto) will at all times remain owned by PLAYGROUND or its licensors; and

User Materials (including any improvements thereto and any Customisation of an Advertising Format) will at all times remain owned by the User or its licensors.

Each party acknowledges the other party's right, title and interest in and to its Brand Marks and agrees that any and all use of the other party's Brand Marks in connection with these Terms will inure to the benefit, and be on behalf, of the other party.

Each party (the Licensor) grants to the other party (the Licensee) a royalty-free, non-exclusive, non-transferable licence, that cannot be sub-licensed except with the prior consent of the Licensor, for the Term, to use the Licensor's Materials (being the PLAYGROUND Material or User Material, as appropriate) (including its Brand Marks) in Australia (or other such territories agreed by the parties in writing) to the extent necessary for the Licensee to fulfil its obligations and exercising its rights under these Terms and, where the User is the Licensee, for the Permitted Purpose.

For the purposes of clause 6(c), the Permitted Purpose means the creation of Advertisements (by the User or by PLAYGROUND, as applicable), capable of being displayed on Certified Websites.

Confidential Information and Privacy

Subject to clause 7(b), a party must not disclose to a third party, or use for a purpose other than as contemplated by these Terms, the existence of and terms of these Terms or any other Confidential Information.

A party may only disclose any Confidential Information:

with the prior written consent of the other party;

to persons which control or are controlled by the party within the meaning of the Corporations Act 2001 (Cth), and the employees, legal advisors, insurers or consultants of such persons, where such persons are under corresponding obligations of confidence as imposed by this clause,

in enforcing these Terms or in a proceeding arising out of or in connection with these Terms;

if required under a binding order of a governmental agency (including any government or any governmental, semi-governmental or judicial entity or authority, self-regulatory organisation established under statute or any stock exchange) or under a procedure for discovery in any proceedings; or

if required under any Law or any administrative guideline, directive, request or policy.

User must comply, and must procure that each User Account Holder complies, with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (the Privacy Act) as if it were an entity bound by that Act, and any other Privacy Laws, in respect of any Personal Information that:

PLAYGROUND or its Personnel disclose to User or a User Account Holder; or

comes into the possession or control of User or a User Account Holder by any means.

Fees and Taxes

User must pay to PLAYGROUND the fees and expenses set out in the Order Form or otherwise agreed between the parties in writing (the Fees) in accordance with these Terms.

PLAYGROUND will issue to User an invoice in respect of the Fees.

User must pay the Fees as set out in an invoice, without set-off, abatement or deduction, within 30 days of receipt of the invoice and in accordance with this clause 8.

Any portion of the Fees not paid by User to PLAYGROUND on or before the date that it is due, and that is not disputed in accordance with clause 18, shall accrue interest at a rate equal to LIBOR + 5% per annum, from the date such amount is due until payment is received in full by the PLAYGROUND.

If GST is payable on a supply made under or in connection with these Terms, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.

Unless otherwise stated, all amounts referred to in these Terms, including the Fees, are stated on a GST exclusive basis.

If an adjustment event occurs in relation to a supply made under or in connection with these Terms, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.

In providing an invoice in accordance with clause 8(a), PLAYGROUND shall provide proper tax invoices if GST is applicable to the Fees.

Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in these Terms.

Reporting

The parties acknowledge and agree that to the extent that Fees are calculated based on impressions served, such Fees will be calculated according to PLAYGROUND Data.

Force Majeure

Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under these Terms is prevented or delayed in whole or in part due to a Force Majeure Event, these Terms will continue and remain in effect but the Affected Party will not be in breach of these Terms for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.

The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

Termination

Either party may terminate these Terms with immediate effect by giving written notice to the other party at any time if:

a party experiences an Insolvency Event;

the other party breaches any warranty, or any other provision of these Terms which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within 30 days after receiving written notice from the terminating party requiring it to do so; or

without limiting clause 11(a)(ii), the other party fails to comply with the obligations set out in clause 7 (Confidential Information and Privacy).

Without limiting clause 11(a)(ii), PLAYGROUND may suspend the provision of the Services and/or User's access (including the access of each User Account Holder) to the PLAYGROUND Materials or terminate these Terms with immediate effect if User or its Personnel breach any of its obligations in clauses 3 and 4.

Either party may terminate these Terms for any reason and without incurring liability to the other party at any time after the Initial Term by giving the other party at least 60 days prior written notice.

Consequences of termination or expiration of Terms

On termination of these Terms:

the Services and all rights granted to User and each User Account Holder under these Terms shall cease; and

User (and each User Account Holder) must immediately delete or remove from its systems the PLAYGROUND Materials and must return to PLAYGROUND the PLAYGROUND Materials supplied or otherwise made available to it under these Terms.

On PLAYGROUND's request, User must procure one of its officers to certify to PLAYGROUND that all copies of the PLAYGROUND Materials have been returned, deleted or destroyed as required under this clause.

User must, within 30 days of termination, pay to PLAYGROUND all Fees incurred and/or owing under the Terms up to and including the date of termination or expiry.

Without limiting any other provision of these Terms, clauses 4 (Use of PLAYGROUND Materials) (other than clause 4(a)), 6 (Intellectual Property), 7 (Confidential Information and Privacy), 12 (Consequences of termination and expiration), this clause 12(d), 13 (Mutual warranties), 14 (User warranties and disclaimer), 15 (Indemnities), and any other clauses which should by their nature survive termination of these Terms, survive termination or expiration of these Terms for any reason.

Mutual warranties

Each party represents and warrants that:

it has full power, authority and legal capacity to enter into these Terms and perform its obligations under these Terms;

execution and performance of these Terms will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and

it has and shall obtain and maintain all licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents, applicable or necessary in order to perform its obligations under these Terms.

User warranties and disclaimer

User acknowledges and agrees that, to the extent permitted by Law (including the Australian Consumer Law if applicable):

the PLAYGROUND Materials are made available "as is" and PLAYGROUND make no warranties or representations that they will be accurate, current, reliable, timely, available, complete or of a certain quality, or that the PLAYGROUND Materials are free from defects, bugs, viruses, errors or omissions, or other harmful components;

except to the extent that PLAYGROUND is directly and solely responsible for such Loss, PLAYGROUND will not be liable for any direct and indirect Loss â€“ irrespective of the manner in which it occurs â€“ which may be suffered due to: (i) User's (or User Account Holder's) use of the PLAYGROUND Materials; (ii) any inaccessibility or unavailability of the PLAYGROUND Materials; (iii) the fact that certain PLAYGROUND Materials are incorrect, incomplete or not up-to-date; or (iv) the inability of the PLAYGROUND Materials to operate in combination with any other hardware, software, system or data;

PLAYGROUND does not represent or warrant that the Advertising Formats will interoperate with any of the Certified Websites that undergo a change after the Commencement Date or with any website that is not a Certified Website;

PLAYGROUND does not accept liability in relation to the operation of, or any content made available on or via, any Certified Websites;

PLAYGROUND does not accept liability in relation to any unavailability of Certified Websites, except to the extent that such Loss is directly and solely caused by an act or omission of PLAYGROUND; and

all warranties, representations or endorsements, express or implied, with regard to the PLAYGROUND Materials or Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement are excluded from these Terms.

Indemnities

Each party indemnifies and holds the other party and its Personnel (and the other party's related bodies corporate, and their Personnel) (the indemnified parties) harmless from and against any and all Loss suffered, incurred or sustained by those persons as a result of or in connection with:

a breach by the indemnifying party of clause 7 (Confidential Information and Privacy);

the death or injury of any person arising out of or otherwise in connection with any wrongful act or omission of the indemnifying party;

any fraud (including fraudulent misrepresentation) or wilful misconduct of the indemnifying party or any of its Personnel; and/or

any breach of applicable Laws by the indemnifying party in connection with these Terms,

except to the extent that such Loss is caused by an act or omission of the indemnified parties.

User shall defend, hold harmless and indemnify PLAYGROUND, its Personnel, its related bodies corporate and its related bodies corporates' Personnel (the indemnified parties) from and against any Loss suffered or incurred by any person arising out of or in connection with:

the content or display of any Advertisement;

User's use of the Advertising Formats in breach of these Terms (including clauses 4 or 6);

the Customisation by User of any Advertising Format; and/or

any Claim made by the owner or operator of a Publisher Website (including any Certified Website) or any other third party in relation to any Advertisement, including any Claim that the Advertisement infringes any Intellectual Property Rights of any third party,

except to the extent that such Loss is caused or contributed to by an act or omission of PLAYGROUND.

Limitation of liability

To the extent permitted by Law, and subject to clause 16(c), in no event will the aggregate liability in respect of either party for any Loss, direct or otherwise, exceed the greater of an amount equal to the Fees paid by User in the preceding six calendar month period or $100,000, regardless of the cause or form of action. The limitation of liability under this clause 16(a) is cumulative and not per incident or claim.

To the extent permitted by Law, under no circumstances will either party be liable for any:

loss of profits, loss of revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business; or

any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Terms, as the probable result of the relevant breach.

Clause 16(a) does not apply to, and shall not limit, any party's liability:

for death or personal injury caused by that party or its Personnel;

for fraud (including fraudulent misrepresentation); or

under any indemnity given in these Terms.

Assignment

User must not assign, change, subcontract, create a security interest over, encumber or otherwise deal with any of its rights or obligations under these Terms without PLAYGROUND's prior written consent.

PLAYGROUND's consent under clause 17(a) will not relieve the User of its obligations to PLAYGROUND under these Terms and the User will be fully responsible to PLAYGROUND for the acts or omissions of its sub-contractors, contractors, assigns and all their Personnel, as if it were the acts and omissions of the User.

Dispute resolution

Neither party may commence any court or arbitration proceedings relating to a dispute between the parties in connection with these Terms (Dispute) unless it has complied with the provisions of this clause 18, except to seek urgent interlocutory relief.

A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute. The parties must use reasonable endeavours to resolve any Dispute by escalating the Dispute to their respective managing directors or similar persons and ensuring that its representatives use reasonable efforts to resolve the Dispute.

If the parties are unable to resolve the Dispute in accordance with clause 18(b) within 20 business days from the date of notification, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines. Each party must bear its own costs in relation to complying with this clause 18(c), except for the costs and expenses of the mediation, which will be borne by the parties equally.

Notices

Any notice, demand, consent or other communication (a Notice) given or made under these Terms:

must be in writing and signed by the sender or a person duly authorised by the sender;

must be addressed and delivered to the other party's representative (as identified in the Order Form or otherwise notified to the other party in writing); and

will be conclusively taken to be duly given or made when delivered, received or left at the above address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.

General

Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of these Terms.

These Terms (including the applicable Order Form) contain the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings relied on by the parties and supersedes all earlier conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other conduct in entering into these Terms.

These Terms may be amended only by the written consent of both parties.

Any provision of these Terms which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of these Terms nor affect the validity or enforceability of that provision in any other jurisdiction.

Each party must bear its own costs arising out of the negotiation, preparation and execution of these Terms.

These Terms and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.

These Terms may be executed in any number of counterparts. All counterparts will be taken to constitute one agreement.

Definitions

The following definitions apply unless the context requires otherwise.

ACDC Guidelines means Australian Commercial Disputes Centre Ltd (ACDC) Guidelines for Commercial Mediation (or if the ACDC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time.

Additional Services means any additional services to be provided by PLAYGROUND to the User as set out in the Order Form or otherwise agreed between the parties in writing.

Advertisement means an advertisement developed by, for or on behalf of the User, that is displayed in or using the Advertising Formats.

Advertising Formats means Bespoke Formats and Standard Formats.

Bespoke Format means the formats for Advertisements that have been developed by PLAYGROUND specifically for the User, in accordance with these Terms and any specifications set out in the Order Form or otherwise agreed between the parties in writing.

Brand Marks means the User Marks and the PLAYGROUND Marks, as applicable.

Certified Websites means the URLs and/or sites listed at https://playground.xyz/sites/ as updated by PLAYGROUND from time to time.

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into these Terms.

Customise means to modify the appearance of the Advertising Formats to meet individual requirements. For the avoidance of doubt, this does not enable the User to configure or amend the source code on which the Advertising Formats operate, and Customisation has a corresponding meaning.

Fault means:

a fault in the PLAYGROUND Materials or an Certified Website resulting in an inability for the Certified Websites to display Advertisements in the Advertising Formats;

a failure by a sub-contractor to perform any of its obligations under the relevant sub-contract; or

perceived or anticipated problems relating to the provision of the Services or PLAYGROUND Materials.

Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;

embargo, power or water shortage, lack of transportation, lack of public or private telecommunications networks; and

breakage or accident or other damage to machinery.

Insolvency Event means where:

a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;

a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

a party becomes or is (including under legislation) deemed or presumed to be insolvent;

a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;

any composition or arrangement is made with any one or more classes of its creditors;

except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;

a party enters into liquidation whether compulsorily or voluntarily; or

any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

Order Form means the Order Form agreed between the Parties on the Commencement Date.

Personal Information means "personal information" as defined in the Privacy Act and any other information relating to individuals that is subject to the operation of the Privacy Laws that either party has collected, received or otherwise has access to in connection with these Terms.

Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any sub-contractors.

PLAYGROUND Data means PLAYGROUND creative ad server data.

PLAYGROUND Materials means the Advertising Formats, relevant software, platforms and products and the associated documentation and deliverables required to deliver the Services.

any legislation from time to time in force in any Australian or non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and

any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued by a government agency under an instrument identified in paragraphs (a), (b) or (c).

Services means any or all of the following services:

development of a Bespoke Format(s);

development of an Advertisement(s) using the creative content provided to PLAYGROUND by the User;

access to the Standard Formats for the creation, by the User and User Account Holders, of Advertisements;

access to the Standard Formats, to enable the User and User Account Holders to Customise the Standard Formats; and/o0r

any Additional Services,

as set out in the Order Form or otherwise agreed between the parties.

Standard Format means the formats for Advertisements that have been developed by PLAYGROUND as off-the-shelf offerings to Users.

Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a governmental agency (including any government or any governmental, semi-governmental or judicial entity or authority, self-regulatory organisation established under statute or any stock exchange), and any related interest, penalty, charge, fee or other amount.

Term means the Initial Term and any applicable Renewal Term.

User Account Holder means User Personnel that the User requires to be a User Account Holder, as specified to PLAYGROUND, in writing.

User Materials means materials provided by User to PLAYGROUND during the Term and includes any Customisation of or to an Advertising Format.

Interpretation

The following rules apply unless the context requires otherwise:

the singular includes the plural, and the converse also applies;

if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

a reference to an agreement or document is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by these Terms or that other agreement or document;

a reference to a party to these Terms or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);

a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

a reference to conduct includes an omission, statement or undertaking, whether or not in writing;

a reference to dollars and $ is to Australian currency (unless the parties expressly agree otherwise in writing); and